SUMMARY of the ARGUMENTS of Now, if there exifts any incorporeal right or property in the author, detached from his manufcript, no act of publication can deftroy it. Can then fach night or property exift at all? Does fuch a right come within the knowledge or each of the common Jaw? In answer to the first of thefe queries, I acknowledge, that, tho' this claim of property is abtract and ideal, novel and refined, it is yet intelligible, and may as easily be made to exift for ever as for a term of years; but, in order to know whether it is fo protect 1774. ed by law, a preliminary question is neceffary, Whether any determination has been made in its favour, by the great and learned men who have been my predeceffors, in regular couife of judicature? It is not for me to fhake a refpectable feries of decifions, and unhinge the foundations of an establifhed right, by any a priori reafoning of my own; but, after inveftigating the decifions of the courts of common law, I can find no fuch determinations. What is common law now, must have been fo 300 years ago, when printing was invented. No traces of fuch a claim are to be met with prior to the Refloration. Very few cafes of this kind happened in Charles II.'s time, or before the licenting act, and thole few were determined upon the prerogative right of the Crown. The executive power of the Crown drew after it this prerogative right, which extended to all acts of parliament, matters of religion, and acts of itate. The cafe of Balket and the university of Cambridge, which was a late one of the fame kind, appeared, upon the p'eadings, to be a question arifing between two parties, who claimed under concurrent and inconfitent grants of the Crown. My late honourable and learned friend, Mr. Yorke, who algued that cafe, endeavoured to thew, that his client's right might arife from the power of the Crown; and, to illuftrate his argument, faid, it might perhaps be property founded on prerogative,"-a language, however allowable for counsel, not very admiffible by, or intelligible to, a judge: but the certificate in the abo e cafe does not fay a word of property; and, indeed, if fuch a claim as that had been founded on property, every one would have as good right to publifh abridgments of the ftatutes, as of any other book. Lord Northington granted injunctions on behalf of publications which he confidered as matters of fate, but left 148 Arguments for and against Literary Property. left fuch works as The Whole Duty of Man to their common remedy at law. When works of literature, encouraged by the facility of pristing, began to fp end, we find the cafes moliply. Of thefe, however, I lay entirely out of the question, all thofe which appear to be cafes between rival patentees of the Crown, all thofe relating to the stationers company, all thofe concerning religion, law, or the flate, and all unpublifhed manufcripts. I fhall premife, too, before I examine the cafes which happened after the statute, that I am of opinion, that the ftatute gives authors and their affigns a general right not connected with the penalty, and that ftatutable right falls under the protection of a court of equ ty, and may ciain the benefit of an injunction. To obtain such an junction, it is by no means neceffary that the plaintiff fhould make out a clear indifputable tide. It may be granted on a reafonal le preter ce, and a doubtfui right, before the bearing of the caule; nor is it objection that the party applying for it has a remedy at law. No bill for an injunction is to be found before the ftatute. The caufes which have come before the Court of Chancery ince the datute, I find to be 17 in number. Of thefe eight were founded on the ftatute right: in two or three, the question was, whether the book was a fair abridg ment: and all the reft were injunctions granted ex parte, upon filing the bill, with an affidavit annex d. In the fe cafes the defendant is not fo much as hcard; and can I imagine, that so manyi illuftrious smen, who prefided in the Court of Chancery, would, without a fingle argument, have determined fo great and copious a quetion, and which has taken up fo much of your Lordships time? In fact, none of them wished to have i faid he had formed any opinion on the fubject. From my own experi nce at the bar, I know that the fucceffive Chancellors, and Matters of the Rolls, Lord Northington, Lord Camden, Sir Ihomas Clark, &c. have all looked upon the cafe as undetermined, it may now, therefore, be fairly teated as a new queftion; and, indeed, it has been argued as fuch upon general principles. Let us confider what principles have been Jaid down as the foundation of this new fpecies of property. I have heard but of one, namely, that fuch a claim is inconfitient with the moral fiueb of things. This idea of moral fitness is indeed an amiable principle, and one cannot help wifhing all claims derived from to pure a fource might receive all poffible encouragement; but this principle is no univerfal rule of law, nor can it be made to apply in all cases, Beautiful as it may be in theory, to reduce it into the practice and execution of common law would create intolerable confufion; it would make laws vain, and judges arbitrary. Nor is it poffible to fupport the Refpondents claim upon this principle, and not allow its operation in a variety of other cafes, where, it is confeffed on all hands, it cannot be allowed.Abridgments of books, translations, notes, as eff &tually deprive the original author of the fruit of his labours, as direct particular copies, yet they are allowable. The compofers of music, the engravers of copper-plates, the inventors of machines, are all excluded from the privilege now contended for; but why, if an equitable and moral right is to be the fole foundation of it? Their genius, their study, their labour, their originality, is as great as an author's, their inventions are as much prejudiced by copyifts, and their claim, in my opinion, ftands exactly on the fame footing; a nice and subtle inveftigation may, perhaps, find out fome liule logical or mechanical differences, but no folid diftinction in the rule of property that applies to them can be found. If fuch a perpetual property remains in an author, and his right continues after publication, I cannot conceive what fhould hinder him from the full exercife of that right in what manner he pleases; he may fet the most extravagant price he will upon the fift impreffion, and refute to print a fe ond when that is fold. If he has an abfolute controul over his ideas when published, as before, he may recal them, fedtroy them, extinguish them, and deprive the world of the ule of them ever af er; his forbearing to reprint is no evidence of his content to abandon his property, and leave it, as a derelict to the public. But it is faid, that the fale of a printed copy is a qualified or conditional fale, and that the purchafer may make all the ufes he pleafes of his book, except that one of reprinting it; but where is the evidence of this extraordinary bargain? or where the analogy of law to support the supposition? În all other cafes of purchase, payment transfers Arguments for and against Literary Property. transfers the whole and abfolute pro- . perty to the buyer: there is no instance where a legal right is otherwife transferred by lale, an example of fuch a fpeculative right remaining in the feller. It is a new and metaphyfical refinement upon the law; and laws, like fome manufactures, may be drawn fo fine as at last to lose their ftrength with their folidity. When printing was first introduced, Cardinal Wolfey warned King Henry VIII. to be cautious how he encouraged it, as a matter which might be dangerous to the state. The event, however, did not prove it fo, and, therefore, the ftatute of the 21ft of James I. excepted it, as a reafonable and allowable monopoly. The fubfequent licensing at gave only an adventitious right; and thus it reted till the ftatute of Queen Anne. The flatute certainly recognizes no common law right, bine illa lachrymæ! Nor can I fuppofe this omiffion happened through ignorance or inadvertence, when I fee fuch great lawnames as Holt, Cooper, Harcourt, Somers, &c. in the lift of that parliament. If fuch a right exifted at common law, and it remained unimpeached by that ftatute, why that anxiety in authors and bookfellers afterwards to obtain another fan&tion for their property? whence thofe different applications to parliament, in the years 1735, 1738, 1739, for a longer term of years, or for life, in this kind of property, and afterwards to get an act to prohibit the liberty of printing books in foreign kingdoms, and fending them back again. The truth is, the idea of a common-law right in perpetuity was not taken up till after that failure in procuring a new ftatute for an enlargement of the term. If (fay the parties concerned) the legiflature will not do it for us, we will do it without their affiftance; and then we begin to hear of this new doctrine, the common-law right, which, upon the whole, I am of opinion, cannot be fupported upon any rules or principles of the common law of this kingdom." The Chief Justice anfwered the first queftion in the affirmative; the fecond and fourth in the negative; and the third and fifth in the affirmative. [The judges having all delivered their opinions, except Lord Mansfield, who declined fpeaking as a judge, the subject was taken up by Lord Camden, the fubftance of whofe fpeech was as follows: 149 "After what the Lord Chief Juftic De Grey has fo ably enforced, ther will be little occafion for me to trou ble your Lordships; nor will the preTM, fent state of my health, and the weaknefs of my voice, allow me to exert myself, were I ever fo much inclined: but the nature of my profeflion, and the duty I owe to this houle, will not fuffer me to remain filent, when fo important a question is to be determined. The arguments attempted to be maintained on the fide of the Refpondents were founded on patents, privileges, ftar-chamber decrees, and the. bye laws of the ftationers company; all of them the effects of the groffelt tyranny and ufurpation; the very lat places in which I fhould have dieamt of finding the leaft trace of the common law of this kingdom: and yet, by a variety of fubtle reafoning and metaphyfical refinements, have they endeavoured to fqueeze out the fpirit of the common law from premifes in which it could not poffibly have exiftence. They began with their pretended precedents and authorities, and they endeavoured to model thefe in fuch a manner, as to extract from them fomething like a common law principle, upon which their argument night left. I shall invert the order, and first of al lay out of my way the whole bede-roll of citations and precedents which they have produced, that heterogeneous heap of rubbish, which is only calculated to confound your Lordships, and mislead the argument. After the first invention of printing, the art continued free for about fifty years. I mean to lay no ftreis upon this; I mention it only historically,not argumentatively; for, as the ute of it was little known, and not very extensive, its want of importance might protect it from invation; but, as foon as its effects in politics al religion were felt, all the crowned heads in Europe at once feized on it, and appropriated it to themfelves. Certain it is, that, in England, the Crown claimed both the power of licenfing what should be printed, and the monopoly of printing. Two licenfes were granted to thofe who petitioned for them. An author not only was obliged to fue for a licenfe to print at all, but he was alfo obliged to fue for a fecond license, that he might print his own work. When the King had once claimed the right of printing, he fecured that right by patents and by charters. Still further to fecure his monopoly, he combined 150 Arguments for and against Literary Property. combined the printers, and formed them into a company, then called the Stationer's Company, by whofe laws none but members could print any book at all. They affumed powers of feizure, confifcation, and imprifonment; and the decrees of the ftar-chamber confirmed their proceedings. Thefe tranfactions, I prefume, have no relation to the common law; and, when they were establifhed, where could an author, independent of the company, print his works, or try his right to it? Every man who printed a book, no matter how he obtained it, entered his name in their books, and became a member of their company; then he was complete owner of the book. Owner was the reim applied to every holder of copies; and the word author does not occur once in all their entries. The two fole titles by which a man fecured his right were the royal patent, and the licenfe of the ftationers company; I challenge any man to hew me any other title: Where is it to be found? Some of the learned judges fay, the words or otherwife, in the ftatute of Queen Anne, relate to a prior comnon-law right: To what common-law night could these words refer? At all the periods I have mentioned, the common-lawights were held under the law of prerogative. In the cafe of the statio ners company against Seymour, the júdges declared that printing was under the direction of the Crown, and that the Court of King's Bench could feize all printers of news, true or falfe, lawful or illicit. But, if it was made ufe of 10 protect authors, what was this protection? A right derived under a bye law of a private company: a protection funilar to that which we give the Great Mogul; when we want any giant from him, we talk fubmiffively, and pay him homage; but it is to ferve our own purpose, and to feast him with a fhadow, that we may attain the fubftance. In the year 1681, we find a bye law for the protection of the ftationers company, and their copyrights, which then confifted of all the literature of the kingdom; for they had contrived to get all the copies into their own hands. In a few Jears afterwards the Revolution was eftablished; then vanished prerogative, then all the bye-laws of the ftationers company were at an end, every restraint tell from off the prefs, and the old common law of England walked at large. During the fucceeding fourteen or fix teen years, no action was brought, no injunction obtained, although no illegal force prevented it; a strong proof, that, at that time, there was no idea of a common-law claim. So little did they then dream of establishing a perpetuity in their copies, that the holders of them, finding no prerogative security, no privilege, no licenting act, no ftar chamber decree, to protect their clain, in the year 1708, came up to parliament, in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and child. en, to excite compaffion, and induce parliament to grant them a ftatutary fecurity. They obtained the act ;—and again and again fought for a further legislative fecurity. Thus, my Lords, ftands the pretence on the fcore of ufage, of which your Lordships have heard fo much on one fide the queftion. I come now to confider upon what foundation stand the prerogative copies; and these were, in fact, cafes between co patentees (for I must confider the ftationers company i felf as a patentte of the Crown), and no authorship right occurs here. The right in the Crown is fuppofed to come either from purcha.e or contra&; and our law a gues from principles, cafes, and analogy; but not a word of this in the judgment of the court; but the arguments of countel are adduced to prove the point. The argument of countel is a foury kind of evidence indeed; in most cases it would be very dangerous to rely on it, but here it is fuch stuff as I am afhamed to mention. You have them at length in Carter. Firit, it is put on the topic of prerogative, next of ownership. 1. Henry the Sixth brought over the printers and their prefis; ergo, fay the counfel, he has an abfolute right to the whole art, and all that it can produce. 2. Printing belongs to nobody, and what is nobody's is of courte the King's. 3. The King pays his judges; ergo, he purchafes that right for a valuable confideration. 4. He paid for the tranf lation of the Bible; therefore, forfooth, he bought a ht to full bib.es. Away with fuch trifling !—But, if this will not ferve the purpofe, recourse is next had to injunctions; they, it is fai, have put the right out of doubt. All the injunction cafes have been ably gone through. I fhall only add, in general ternis, that they can prove nothing, if a thousand injunctions had been granted, unless the Chancellor, at the Arguments for and against Literary Property. the time he granted them, had pronounced a folemn opinion, that they were grounded upon the common law. Lord Hardwicke, after twenty years experience, in the last cafe of the kind that came before him, declared that the point had never yet been determined. Lord Northington granted them on the idea of a doubtful title; I continued the practice upon the fame foundation; and fo did the prefent Chancellor. Where, then, is the Chancellor who has decided, ex cathedra, that he had decided upon the commonlaw right? Let the deciñon be produced in direct terms. At length, my Lords, having removed every stumbling block that op pofed our progress to the pure fource of common-law, having cleared the way of all thofe fpurions, pretended authorities, which will not bear the test of a moment's ferious examination, the question begins to affume its natural fhape. Here, then, I feel myfelf upon my own ground, and [ challenge any man to produce any adjudication, a precedent, a cafe, or any thing like legal authority, on which this claim can be grounded. Does there a fcintilla, a glimpfe of common law appear under any of thofe different heads I have mentioned, and which have been so often repeated to us? For my own part, I find nothing in the whole that favours of law, except the term itself, literary property. They have borrowed one fingle word from the common law, and have raked into every ftore houfe of literary lumber to find out how to apply it to the fubject, and to deduce fome principles to which it may refer, and be governed by. And now what are they? What are the foundations of this claim in the English common law? Why, in the first place, fay the Refpordents, every man has a right to his ideas.-Most certainly, every man who thinks, has a right to his thoughts, while they continue HIS but here the question again returns, When does he part with them? When do they become publici juris? While they are in his brain, no one indeed can purloin them; but what if he speaks, and lets them fly out in private or public difcourfe? Will he claim the breath, the air, the words in which his thoughts are cloathed ? Where does this fanciful property begin, or end, or continue? Oh! fay they, the ideas are marked in black and white, on paper or parchment.Now, then, we get at fomething; and an action, I allow, will lie for ink and 151 paper: but what fays the common law about the incorporeal ideas, and where does it prefcribe a remedy for the recovery of them, independent of the materials to which they are affixed? I fee nothing about the matter in all my books; nor. were I to admit ideas to be ever fo diftinguishable and definable, fhould I therefore infer they must be matters of private property, and objects of the common law. But granting this general pofition, we get footing but upon one fingle step, and new doubts and difficulties arife whenever we attempt to proceed. Is this property defcendible, transferrable, or af fignable? When published, can the purchafer lend his book to his friend? Can he let it out for hire, as the circulating libraries do? Can he enter it as common stock in a literary club, as is done in the country? (Every thing of this kind, in a degree, prejudices the author's fale of the impreffion.) May he tranfcribe it for a charity? Then what part of the work is exempt from this defultory claim? Does it lie in the fentiments, the language and style, or the paper? If in the fentiments, or language, no one can tranflate or abridge them. Locke's Effay might, perhaps, be put into other expression, or newly methodized, and all the original fyftem and ideas be retained. Thefe queftions fhew how the argu ment counter-acts itself,-how the fubject of it Ahifts, and becomes public in one fenfe, and private in another: and they are all new to the common law, which leaves us perfectly in the dark about their folution. And how are the Judges, without a rule or guide, to determine them when they arife, whole books and ftudies afford no more light upon the fubject than the common underftandings of the parties themselves? What diverfity of judgments, what confufion in opinion, muft they fall into, without a trace or line of law to direct their determination! But 'tis faid, that it would he contrary to the ideas of private juftice, moral fitness, and public convenience, not to adopt this new fyftem. But who has a right to decide thefe new cafes, if there is no other rule to meafure by but moral fitnefs and equitable right? Not the Judges of the common law, I am fure. Their business is to tell the fuitor how the law ftands, not how it ought to be; otherwife. each Judge would have a diftin&t tribunal in his own breaft, the decifions of which would be as irregular and uncertain, and yarious, as the minds and tempers of mankind. |